P. v. Simonin

Field 2/5/09 P. v. Simonin CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Alexis Simonin appeals from a judgment of conviction entered after a jury found him guilty of five counts of lewd conduct (Pen. Code,[1] 288, subd. (a) - counts 1, 5 (Elizabeth Doe), 10, 12, 13 (Erica Doe), two counts of forcible lewd conduct ( 288, subd. (b)(1) - counts 2, 3 (Elizabeth Doe)), three counts of aggravated sexual assault ( 269 - count 4 (Elizabeth Doe), 9, 11 (Erica Doe)), child endangerment ( 273a, subd. (b) - counts 6 (Elizabeth Doe), 7 (Christopher Doe)), and possession of marijuana (Health & Saf. Code, 11357, subd. (b) - count 8). The jury also found that there had been more than one victim within the meaning of section 667.61, subdivisions (b) and (e) in connection with counts 1, 2, 3, 5, 10, 12, and 13. The trial court sentenced defendant to 105 years to life in state prison. On appeal, defendant contends that counts 10, 12, and 13 are barred by the statute of limitations. We find no error and affirm the judgment.

I. Statement of Facts

Defendant beat Christopher Doe, his former stepson, and his daughter Elizabeth Doe. Defendant also began sexually molesting Elizabeth when she was in fourth or fifth grade.[2] Elizabeth was afraid of him and thought that he would beat her if she resisted. Defendant molested her approximately 50 times.

Defendant told Detective Daniel Accardo that he touched Elizabeths vagina [m]aybe five times.

Throughout the summer of 1996, defendant sexually molested Erica, his ex-wifes younger sister, when Erica was in the fifth grade.[3] In 1999, Erica told Brea Owen, a youth pastor at a church camp, about the molestations. Owen encouraged Erica to tell her mother. However, after Erica disclosed the information to her mother, her mother became angry with her.

II. Discussion

A. Statute of Limitations

Defendant contends that counts 10, 12, and 13 are barred by the statute of limitations. We disagree.

In an information filed on August 25, 2006, the district attorney charged defendant in counts 10, 12, and 13 of violating section 288, subdivision (a). The information alleged that the offenses against Erica were committed between June 1, 1996 and September 15, 1997.

Generally, the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed determines the applicable time limitation. ( 805, subd. (a).) The maximum punishment for a violation of section 288, subdivision (a) is eight years. ( 288, subd. (a).) Pursuant to section 800, prosecution for an offense punishable by imprisonment in the state prison for eight years or more shall be commenced within six years after commission of the offense. Thus, the statute of limitations for the offenses charged in counts 10, 12, and 13 would have expired in September 2002 under section 800.[4]

However, the Legislature enacted different limitations periods for specified sex offenses. In 2002, former section 803, subdivision (i) extended the statute of limitations for violations of section 288 from six years to 10 years. It provided: [T]he limitations period for commencing prosecution for a felony offense described in subparagraph (A) of paragraph (2) of subdivision (a) of [former] section 290, where the limitations period set forth in Section 800 has not expired as of January 1, 2001, . . . shall be 10 years from the commission of the offense . . . . (Former section 803, subd. (i)(2) (Stats. 2001, ch. 235, 1.))[5] Section 288 is listed in former section 290, subdivision (a)(2)(A). Here, the limitations period would have expired in September 2006, or 10 years after the commission of the offenses in September 1996. Since the district attorney filed the information in August 2006, the prosecution was timely.

Contrary to defendants claim, the prosecution of counts 10, 12, and 13 does not violate ex post facto principles. The ex post facto clause prohibits any legislative act that criminalizes conduct innocent when done, makes a crime greater than when done, increases or changes the punishment, or alters the rules of evidence to permit conviction on lesser or different evidence than when the crime was committed. (People v. Brown (2004) 33 Cal.4th 382, 391, citing Carmell v. Texas (2000) 529 U.S. 513, 522-525.) In holding that a statute that revives an expired statute of limitations violates the ex post facto clause, the United States Supreme Court observed that a statute that extends an unexpired statute of limitations does not violate the constitutional proscription. (Stogner v. California (2003) 539 U.S. 607, 618-619.) In the present case, since the limitations period under section 800 did not expire prior to the effective date of former section 803, subdivision (i) in January 2002, application of the 10-year limitations period did not violate the ex post facto clause.[6]

B. Section 667.61 Findings

Defendant next contends that the section 667.61 finding should be stricken, because there was not more than one victim.

Section 667.61, subdivision (b) required imposition of a sentence of 15 years to life when a defendant was convicted of one of the offenses listed under subdivision (c) under circumstances listed in subdivision (e). One of the triggering circumstances occurs if the defendant commits an offense against more than one victim. Here, defendant was convicted of multiple section 288 offenses involving Erica and Elizabeth. Since section 288 constituted a qualifying offense under the statute, and defendant committed this offense against more than one victim ( 667.61, subd. (e)(5)), there is no merit to defendants contention.

III. Disposition

The judgment is affirmed.

_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Elia, Acting P.J.

_____________________________

Duffy, J.

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[1] All further statutory references are to the Penal Code unless stated otherwise.

[2] Elizabeth was 11 years old at the time of trial.

[3] Erica was 21 years old at the time of trial.

[4] Defendant does not challenge his section 269 convictions in counts 9 and 11, because these offenses are punishable by life in prison. Thus, these offenses could be prosecuted at any time. ( 799.)

[5] Former section 803, subdivision (i) is now codified in section 801.1, subdivision (b).

[6] We need not consider defendants arguments regarding jury instructions pursuant to former section 803, subdivisions (f) and (g). This statute provided a one-year statute of limitations for sex crimes committed against children where other limitations periods had expired. Here, however, these subdivisions of former section 803 were inapplicable, because the prosecution was timely under the 10-year limitations period.